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DePaul Law Review Volume 57 Issue 1 Fall 2007 Article 4 Mental Health Court Judges as Dynamic Risk Managers: A New Conceptualization of the Role of Judges Shauhin Talesh Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Shauhin Talesh, Mental Health Court Judges as Dynamic Risk Managers: A New Conceptualization of the Role of Judges , 57 DePaul L. Rev. 93 (2007) Available at: https://via.library.depaul.edu/law-review/vol57/iss1/4 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. MENTAL HEALTH COURT JUDGES AS DYNAMIC RISK MANAGERS: A NEW CONCEPTUALIZATION OF THE ROLE OF JUDGES Shauhin Talesh* The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built. The bad will be rejected and cast off in the laboratory of the years. Little by little the old doctrine is under- mined. Often the encroachments are so gradual that their signifi- cance is at first obscured. Finally we discover that the contour of the landscape has been changed, that the old maps must be cast aside, and the ground charted anew.1 INTRODUCTION The most significant development in mental health law in the past decade is the emergence of problem-solving courts that deal with mentally ill individuals. Mental health courts are criminal courts that divert people with serious mental illness into treatment programs rather than jails or prisons.2 Mental health courts developed in re- sponse to the rising number of people with severe mental illnesses incarcerated in jails and prisons, the lack of treatment mentally ill in- dividuals receive in carceral institutions, and the high likelihood that mentally ill defendants will recidivate if untreated. 3 Three rationales * Ph.D. cand. 2011, Jurisprudence & Social Policy, University of California, Berkeley; Insur- ance L.L.M., 2001, University of Connecticut; J.D., 2000, University of Connecticut; B.A., 1996, University of California, Irvine. The author would like to thank Malcolm Feeley, Jonathan Si- mon, Charles Weisselburg, John Monahan, Chrysanthi Leon, and Brent Nakamura for helpful comments on earlier drafts. 1. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 178 (1921). 2. See Robert Bernstein & Tammy Seltzer, Criminalization of People with Mental Illnesses: The Role of Mental Health Courts in System Reform, 7 UDC/DCSL L. REV. 143, 143-44 (2002); Derek Denckla & Greg Berman, Rethinking the Revolving Door: A Look at Mental Illness in the Courts, Ctr. for Court Innovation 2 (2001). Carceral institutions, such as jails, where inmates are typically housed either when arrested or convicted of small crimes with less than one year, and prisons, where inmates with longer sentences for more serious offenses are housed, have long struggled with problems associated with mentally ill persons. 3. See Allison D. Redlich, Voluntary, But Knowing and Intelligent? Comprehension in Mental Health Courts, 11 PSYCHOL. PUB. POL'Y & L. 605 (2005) (noting the factors that brought about the creation of mental health courts); Bernstein & Seltzer, supra note 2, at 143-45; COUNCIL OF STATE GOVERNMENTS, CRIMINAL JUSTICE/MENTAL HEALTH CONSENSUS PROJECT (June 2002); DEPAUL LAW REVIEW [Vol. 57:93 underlie mental health courts' therapeutic approaches: (1) when men- tally ill individuals commit criminal acts, deterrent or punitive crimi- nal sanctions, are neither effective, nor morally appropriate; (2) legal processes can be reshaped in ways that improve the psychological functioning and emotional well-being of mentally ill defendants; and (3) addressing the underlying mental illness that contributes to the criminal act increases public safety and decreases the likelihood of re- cidivism.4 Through a collaborative, team-oriented approach, judges use a range of flexible responses, treatment programs, and close moni- 5 toring plans to reduce the risk of recidivism. 6 Scholars often describe problem-solving court judges as activists. This analysis is correct. Prior analysis has failed, however, to establish a framework for understanding how problem-solving court judges be- have in ways that are different from our traditional conception of an activist judge who seeks to define and protect public values.7 Mental health court judges do something more: they manage risk. Risk is an intuitive and innate element in society.8 It is the uncer- tainty about what the future will bring, not potential adverse events, which make life full of risk.9 In response to this uncertainty, human beings, private organizations, and governments attempt to increase Paula M. Ditton, Mental Health and Treatment of Inmates and Probationers: Special Report, U.S. DEPT OF JUSTICE STATS., at 1 (July 1999). In particular, over one-fourth of the inmates with mental illnesses in local jails are incarcerated for a public order offense. Id. at 4. 4. See Bernstein & Seltzer. supra note 2, at 148. The rationale is that many individuals ar- rested for quality-of-life offenses suffer from mental illnesses and would not commit these of- fenses but for the mental illness. Also, mentally ill offenders often lack the mens rea component of culpability. 5. Id. 6. For a compelling argument that explains why problem-solving judges and, in particular, drug court judges are activists, see JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERI- CAN DRUG COURT MOVEMENT 94-99 (2001). "Instead, the drug court judge is, on a number of fronts, an activist judge." Id. at 94. For further discussion on problem-solving courts as activist, see Richard Boldt & Jana Singer, Juristocracy in the Trenches: Problem-Solving Judges and Therapeutic Jurisprudencein Drug Treatment Courts and Unified Family Courts, 65 MD.L. REV. 82, 83 (2006) (noting that problem-solving courts "have largely repudiated the classical virtues of restraint, disinterest, and modesty, replacing these features of the traditional judicial role with bold, engaged, action-oriented norms"); Joshua Matt, Jurisprudenceand Judicial Roles in Massa- chusetts Drug Courts, 30 N. ENG. J. ON CRIM. & CIV. CONFINEMENT 151, 151-52 (2004) (noting that the primary evaluation of problem-solving judges is as activists). 7. Owen M. Fiss. Foreward, The Forms of Justice, 93 HARV. L. REV. 1 (1979) (noting that the judge's function is to give concrete meaning and application to public values through the process of adjudication). 8. See DAVID A. Moss, WHEN ALL ELSE FAILS: GOVERNMENT AS THE ULTIMATE RISK MAN- AGER 1 (2002) ("[R]isk management constitutes a potent and pervasive form of public policy in the United States. Our economy would be unrecognizable in its absence. It is even possible that the economy would not function at all."). 9. Id. at 22. 2007] MENTAL HEALTH COURT JUDGES certainty and stability while reducing risk. Scholars study risk man- agement (that is, the ability to evaluate, reduce, and control risk) in a variety of areas, including public safety regulation, property insurance, products liability, criminal justice, accidents, commercial enterprise, fi- nancial management, and politics.10 However, risk management has not been traditionally framed or analyzed as a function of the judici- ary. This is the first Article of which the author is aware that exposes and expands the conceptual frame of reference for risk management to the judicial sphere. The purpose of this Article is not to argue for or against judges taking on risk management functions."' Rather, this Article recog- nizes and understands how judges take on this important role in a particular type of specialty court. More importantly, this analysis moves scholarly attention away from the traditional debate of the judge's role as a "passive, neutral arbiter" versus "activist" and toward examination of how risk management approaches by judges play a growing role in the criminal court process. Part II of this Article describes the "transinstitutionalization" of mentally ill individuals and traces how they went from state hospitals to state jails and prisons over the past fifty years. 12 It also explains how transinstitutionalization resulted in a revolving door phenome- non, whereby defendants cycled in and out of the criminal justice sys- tem for minor, quality-of-life offenses without receiving treatment for 13 their illnesses. Part III explores risk management and the role of the risk man- ager. 14 In particular, risk management has three components: (1) identifying risk by conducting a risk assessment; (2) measuring and evaluating risk in order to implement a plan; and (3) handling risk through monitoring. The risk manager's objective is not to eliminate risk, but to control, manage, minimize, and reallocate it.15 In order to 10. See generally Moss, supra note 8 (noting various ways risk is managed in society). For a comprehensive explanation of the various ways in which risk management has been studied and critiqued, see JIM BANNISTER, How TO MANAGE RISK (2d ed. 1997). 11. For a thorough discussion of the pros and cons of having mental health courts, see Susan Stefan & Bruce J. Winick, A Dialogue on Mental Health Courts, 11 PSYCHOL. Pun. POL'Y & L. 507 (2005). 12. See infra notes 23-72 and accompanying text. 13. Id. 14. See infra notes 73-118 and accompanying text. 15. See generally GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 26 (1970) (noting "as axiomatic that the principal function of accident law is to reduce the sum of the costs of accidents and the costs of avoiding accidents"); Clayton P. Gillette & James E. Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027, 1028 n.2 (1990) ("[T]he distribution of risk-demographically, spatially, and temporally-also has to be considered, DEPAUL LAW REVIEW [Vol.

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